A New Age in Negligent Security Claims

On February 23, 1993, six terrorists drove a van loaded with a 1,500 pound urea-nitrate bomb into the basement area of the World Trade Center in downtown Manhattan. They set the timer to the bomb and left. Minutes later, the bomb exploded, killing six people and injuring thousands throughout the World Trade Center. The blast also left a 200 foot crater in the basement parking lot. While the culprits were eventually caught and prosecuted, many questions arose regarding officials exercised reasonable care in providing proper security which ostensibly would have prevented the attack.

Families of survivors, business owners and those injured in the attack sued the Port Authority of New York and New Jersey, the transportation agency that built and operated the trade center, alleging that it was negligent in securing the building and could have taken steps to prevent the bombing. On September 27, 1995, a jury began hearing the case after 12 years of legal disputes. Attorneys for the victims argued that the Port Authority had years of warnings about security weaknesses, including internal memos and outside studies that detailed the vulnerability of the complex. According to a CNN report, one memo said it was "obvious" such an attack was a "real possibility," and "the results could be catastrophic." Another internal report called the parking garage, with its 400 spaces for public use, "highly susceptible to car bombings."

The jury found the Port Authority was negligent in
failing to provide adequate security for the World Trade Center. Specifically, it found the Port Authority 68 percent at fault for ignoring the security assessments and found the terrorists 32 percent at fault for detonating the bomb that damaged the building. Money damages would be decided in a second trial.

What Is Negligent Security?

Negligent security is defined as the failure to exercise the degree of care in providing security or protection that someone of ordinary prudence would have exercised in the same circumstance. It is a theory of premises liability where a property owner is held accountable for a patron's injuries suffered in the midst of a criminal act on the owner's property. An injured patron may recover money damages for negligent security by proving:

The owner had a legal duty to protect people invited to enter the property, such as customers or tenants, or to warn them of specific dangers.

The owner breached the duty to protect customers or tenants from criminal acts.

The breach was the proximate cause of the injury suffered (but for the breach, the injury would not have occurred).

The customer or tenant suffered damages as a result of the breach.

Foreseeability is the critical element in
premises liability cases, as courts question whether the property owner "knew or should have known" about potential security breaches. Essentially, if a particular crime is likely to occur on the owner's property, he or she has a duty to take reasonable steps to prevent the crime from happening, and to protect patrons who would be likely victims. Hotel parking lots are prime examples. It is likely that a hotel customer could be assaulted in a poorly lit, unsupervised lot. As such, the hotel would have a duty to make sure the lot had adequate lighting, that hotel security routinely patrolled it and that panic buttons were installed and in good working order.

In the World Trade Center case, jurors believed that a terrorist attack was foreseeable and that the Port Authority did not heed the warnings about the parking lot's vulnerability. Since it did not take steps to correct this weakness, the Port Authority was ultimately liable for the damages that ensued.

The New York Court of Appeals recently heard arguments regarding the damages previously awarded by the trial court and upheld by the Appellate Division. While hundreds of claims were settled out of court, the Port Authority still may be subject to hundreds of millions in damages due to business interruption. Regardless of the court's decision, the case set a new precedent for large scale negligent security claims, as building owners have an added duty to protect against possible terrorist attacks.

The operative question is how far do business owners have to go to meet a general standard of foreseeability? At minimum, property managers must conduct risk assessments of their properties, develop basic security policies and communicate them to their staff. However, business owners may not regularly review their policies or procedures to ensure patron safety.

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